FAQs

Civil Cases — Frequently Asked Questions

Q: Is there anything I can do once a default judgment is entered against me?

A. Maybe. If you act promptly once you learn the default judgment was entered against you, you can ask the court to “set aside” (cancel) the default judgment and “vacate” (remove) the judgment against you. You can do this by filing a motion to set aside the default judgment. You must have a good reason for not responding to the lawsuit in the 30 days you had since you were served. The judge will decide whether to cancel the judgment or not. If the judgment is canceled, you will get a chance to answer to lawsuit.

There are no forms for filing this type of motion, so you have to create one on your own. But first ask your court because some courts have developed a local form for this, and in other courts, the self-help center may have created a template you can use. If you are unable to use a form, you can research how to prepare your own forms at the law library.

Q: I am the creditor. What out-of-pocket costs can I get back from the debtor and how do I collect them?

To recover your costs of collection, you must file with the court a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest (Form MC-012) within 2 years of incurring the costs.

Q: How do I calculate the 10 percent interest that the creditor is entitled to on the unpaid portion of the judgment?

A. Interest begins on the day the final judgment is entered. If partial payments are made, those payments are first applied to the accrued interest and then to the unpaid principal. For more information, read Code of Civil Procedure sections 685.010 to 685.030.

To calculate the interest, first determine the daily amount of interest. For example, a $20,000 judgment accrues $2,000 of interest per year at a rate of 10 percent. Dividing $2,000 by 365 days gives you a daily interest rate of $5.48. Now, assume that after 145 days you pay the creditor $4,000. The following computation shows the amount of interest that will accrue after that payment is made:

After 145 days, $794.60 (145 days x $5.48/day) of interest will have accrued on the $20,000 judgment. Out of your $4,000 payment, the creditor will pay the accrued interest first. The creditor then will have $3,205.40 left ($4,000 - $794.60 = $3,205.40) and will credit that remaining $3,205.40 against the $20,000 judgment ($20,000 - $3,205.40= $16,794.60 of unpaid principal). The new daily interest will then accrue at a rate of $4.60/day ($16,794.60 x 10% = $1,679.46 ÷ 365).

Assume, then, that 215 days later you make a $1,700 payment. During the 215 days, $989 (215 days x $4.60/day) of interest will have accrued. Out of the $1,700, the creditor will pay the accrued interest first ($1,700 - $989 = $711), leaving $711 to apply to unpaid principal. After the creditor applies the $711 against the remaining judgment principal of $16,794.60, you will still owe $16,083.60 of that principal. The new daily interest will then accrue at a rate of $4.41/day ($16,083.60 x 10% = $1,608.36÷ 365).

Q: What is ADR?

A: ADR, short for alternative dispute resolution, is the common name for many different ways of settling a disagreement without suing in court, or of settling a lawsuit once it is filed, but before trial.

ADR includes mediation, arbitration (binding and nonbinding), neutral evaluation, special masters and referees, and settlement conference. The most common forms of ADR are settlement conferences, mediation, and arbitration.

A: It is very hard and expensive to try a case. Here are some tips for thinking about settlement:

The other side probably has a good reason to settle the case, too.

You are not weak because you call the other side to try to settle or suggest mediation. You have already finished discovery. You both know the case. You both have to face the cost and risk of going to trial. Both of you should want to talk.

Think of what is most important to you, not what is fair. Do not go to trial to get what you think is fair. You will probably be disappointed. Think about what is most important to you and what kind of settlement or solution will give you what you need.

Compromise. If you wait because you think you will get everything you want at trial, or if you will not settle because you think you do not owe money, you may get a court decision against you. If you settle, it takes the uncertainty and gamble out of the case. Lose a little so you do not lose a lot.

Q: What do I do if I cannot find the debtor (person who owes me money)?

A: You may not need to know the debtor’s location if, for example, you know the bank branch where the debtor has his or her accounts. On the other hand, you may need to do a debtor’s examination at the courthouse.

Some ways to try to locate the debtor:

Use the Internet and its search tools: white pages, reverse look-up, etc.

Check with the county assessor to see if the debtor, debtor’s spouse, or the debtor’s domestic partner owns real property. Some county assessors will confirm if a debtor owns real property over the phone. Click here to find a local tax assessor.

Search the county clerk’s records to find if the person has a fictitious business name statement on file with an address.

Check with the court to see if there are any other lawsuits filed against the debtor, the debtor’s spouse, or the debtor’s domestic partner and see if an address is listed in that file.

Credit Card Debt - Frequently Asked Questions

Q: What can I do if I am a victim of identity theft and the debt is not mine?

A: You must first make a police report about your identity being stolen. You will need to provide a copy of the police report to the creditor to prove you are a victim. If the creditor refuses to accept the report and insists on suing you for a debt you do not owe, you can file a cross-complaint along with your answer seeking damages for having to defend yourself in a case of identity theft.

Q: What if I know I owe the money but just don’t have it?

A. This is a difficult position to be in. If you answer the lawsuit and say you know you owe the money but cannot pay it, you will most likely lose the case and might end up owing more money because the credit card company will ask the judge to make you pay for their lawyer fees and court costs.

If you don’t answer, there will be a court order against you that can further hurt your credit and could result in your wages being garnished or a lien being put on your house.

It is best if you talk to a lawyer that can help you negotiate with the credit card company. The lawyer can also help you decide if you should respond to the lawsuit or just focus on reaching a settlement. Some legal aid agencies or bar associations may have lawyers that can help you negotiate with the credit card company and avoid going to court. Click for help finding a lawyer.

Q: Is there anything I can do once a default judgment is entered against me?

A: Maybe. If you act promptly once you learn the default judgment was entered against you, you can ask the court to “set aside” (cancel) the default judgment and “vacate” (remove) the judgment against you. You can do this by filing a motion to set aside the default judgment. You must have a good reason for not responding to the lawsuit in the 30 days you had since you were served. The judge will decide whether to cancel the judgment or not. If the judgment is canceled, you will get a chance to answer the lawsuit.

There are no forms for filing this type of motion, so you have to create one on your own. But first, ask your court because some courts have developed a local form for this, and in other courts, the self-help center may have created a template you can use. If you are unable to use a form, you can research how to prepare your own forms at the law library.

Q: How do I calculate the 10 percent interest that the creditor is entitled to on the unpaid portion of the judgment?

A. Interest begins on the day the final judgment is entered. If partial payments are made, those payments are first applied to the accrued interest and then to the unpaid principal. For more information, read Code of Civil Procedure sections 685.010 to 685.030.

To calculate the interest, first determine the daily amount of interest. For example, a $20,000 judgment accrues $2,000 of interest per year at a rate of 10 percent. Dividing $2,000 by 365 days gives you a daily interest rate of $5.48. Now, assume that after 145 days you pay the creditor $4,000. The following computation shows the amount of interest that will accrue after that payment is made:

After 145 days, $794.60 (145 days x $5.48/day) of interest will have accrued on the $20,000 judgment. Out of your $4,000 payment, the creditor will pay the accrued interest first. The creditor then will have $3,205.40 left ($4,000 - $794.60 = $3,205.40) and will credit that remaining $3,205.40 against the $20,000 judgment ($20,000 - $3,205.40= $16,794.60 of unpaid principal). The new daily interest will then accrue at a rate of $4.60/day ($16,794.60 x 10% = $1,679.46 ÷ 365).

Assume, then, that 215 days later you make a $1,700 payment. During the 215 days, $989 (215 days x $4.60/day) of interest will have accrued. Out of the $1,700, the creditor will pay the accrued interest first ($1,700 - $989 = $711), leaving $711 to apply to unpaid principal. After the creditor applies the $711 against the remaining judgment principal of $16,794.60, you will still owe $16,083.60 of that principal. The new daily interest will then accrue at a rate of $4.41/day ($16,083.60 x 10% = $1,608.36÷ 365).

Q: What is ADR?

A: ADR, short for alternative dispute resolution, is the common name for many different ways of settling a disagreement without suing in court, or of settling a lawsuit once it is filed, but before trial.

ADR includes mediation, arbitration (binding and nonbinding), neutral evaluation, special masters and referees, and settlement conference. The most common forms of ADR are settlement conferences, mediation, and arbitration.

A: Individuals have to obtain credit counseling from an approved provider within 180 days before filing a bankruptcy case, and also have to file a statement of compliance and a certificate of credit counseling furnished by the provider. If you do not complete this step, your case may be dismissed.

A: No. Generally, you cannot discharge your student loans through a bankruptcy. But sometimes there are other legal reasons why you do not have to pay back a student loan, like if your school closed before you finished your degree. Click for more information on student loans if your school closed.